Counsel Portfolio Services Inc. and Mackenzie Financial Corporation
Headnote
National Policy 11-203 Process for Exemptive Relief Applications in Multiple Jurisdictions -- Application for relief from certain filing, delivery and prospectus renewal requirements of investment funds under securities legislation, where obligations are required to be met during period from June 2, 2020 to September 1, 2020 -- Relief granted to extend filing and delivery obligations for period of 60 days -- Relief granted such that prospectus lapse date is extended for period of 60 days -- Relief subject to terms conditions.
Applicable Legislative Provisions
Securities Act (Ontario), RSO 1990, c S.5, as am., ss. 62, 62(5).
National Instrument 81-106, Investment Fund Continuous Disclosure, ss. 2.2, 4.2, 5.1(2), 5.2(5), 5.3(3), 5.4, 9.3, 17.1.
National Instrument 81-107 Independent Review Committee for Investment Funds, ss. 4.4, 6.2, 7.1.
April 15, 2020
IN THE MATTER OF THE SECURITIES LEGISLATION OF ONTARIO (the Jurisdiction)
AND
IN THE MATTER OF THE PROCESS FOR EXEMPTIVE RELIEF APPLICATIONS IN MULTIPLE JURISDICTIONS
AND
IN THE MATTER OF COUNSEL PORTFOLIO SERVICES INC.
AND
MACKENZIE FINANCIAL CORPORATION (each a Filer, and collectively, the Filers)
DECISION
IN THE MATTER OF THE PROCESS FOR EXEMPTIVE RELIEF APPLICATIONS IN MULTIPLE JURISDICTIONS
AND
IN THE MATTER OF COUNSEL PORTFOLIO SERVICES INC.
AND
MACKENZIE FINANCIAL CORPORATION (each a Filer, and collectively, the Filers)
DECISION
IN THE MATTER OF COUNSEL PORTFOLIO SERVICES INC.
AND
MACKENZIE FINANCIAL CORPORATION (each a Filer, and collectively, the Filers)
DECISION
MACKENZIE FINANCIAL CORPORATION (each a Filer, and collectively, the Filers)
DECISION
BACKGROUND
The principal regulator in the Jurisdiction has received an application (the Application) from the Filers on behalf of the mutual funds that are managed from time to time by the Filers or by a successor of such Filers (the Funds) for a decision under the securities legislation (the Legislation) of the Jurisdictions (as defined below) for relief from:
a) the filing and delivery requirements (the Filing and Delivery Requirements) under:
i) section 2.2 of National Instrument 81-106 Investment Fund Continuous Disclosure (NI 81-106), which requires that annual financial statements and an auditor's report be filed on or before the 90th day after the investment fund's most recently completed financial year,
ii) section 4.2 of NI 81-106, which requires an investment fund, other than a scholarship plan, to file an annual management report of fund performance for each financial year at the same time that it files its annual financial statements for that financial period,
iii) section 5.1(2) of NI 81-106, which requires an investment fund to deliver to a securityholder its annual financial statements and the related management report on fund performance concurrently with the filing deadline set out in Part 2 of NI 81-106,
iv) section 5.2(5) of NI 81-106, which requires an investment fund acting in accordance with section 5.2 of NI 81-106, to send annually to each securityholder a request form that they may use to instruct the investment fund as to which of the documents the securityholder wishes to receive,
v) section 5.3(3) of NI 81-106, which requires an investment fund to send annually to each securityholder a request form the securityholder may use to instruct the investment fund as to which document listed in subsection 5.1(2) of NI 81-106 the securityholder wishes to receive,
vi) section 5.4 of NI 81-106, which requires an investment fund to send a copy of the document listed in subsection 5.1(2) of NI 81-106 requested by a securityholder by the later of the filing deadline of the requested document and ten calendar days after the request,
vii) section 9.3 of NI 81-106, which requires an investment fund to file an annual information form on or before 90 days after the most recently completed financial year, and
viii) section 4.4 of National Instrument 81-107 Independent Review Committee for Investment Funds (NI 81-107), which requires an independent review committee to prepare, for each financial year of an investment fund and no later than the date the investment fund files its annual financial statements, a report to securityholders of the investment fund that describes the independent review committee and its activities for the financial year, and
b) the prospectus renewal requirements (the Prospectus Renewal Requirements) for a simplified prospectus and a long form prospectus under the Legislation.
Together, relief from the Filing and Delivery Requirements and the Prospectus Renewal Requirements is referred to as the Requested Relief.
Under the Process for Exemptive Relief Applications in Multiple Jurisdictions (for a passport application):
a) the Ontario Securities Commission is the principal regulator for this Application; and
b) the Filer has provided notice that section 4.7(1) of Multilateral Instrument 11-102 Passport System (MI 11-102) is intended to be relied upon in each of the other provinces and territories of Canada (together with Ontario, the Jurisdictions).
INTERPRETATION
Terms defined in National Instrument 14-101 Definitions have the same meaning if used in this decision, unless otherwise defined.
REPRESENTATIONS
This decision is based on the following facts represented by the Filer:
The Filers
1. The head office of Counsel Portfolio Services Inc. is located in Mississauga, Ontario and the head office of Mackenzie Financial Corporation is located in Toronto, Ontario. The Filers are affiliates of each other and of I.G. Investment Management, Ltd., which has applied for, and received, relief substantially identical to the Requested Relief in a separate decision.
2. Counsel Portfolio Services Inc. is registered as an investment fund manager in Ontario, Quebec and Newfoundland and Labrador, as a portfolio manager in Ontario, and as a commodity trading manager in Ontario. Mackenzie Financial Corporation is registered as an investment fund manager in Ontario, Quebec and Newfoundland and Labrador, as an exempt market dealer in all the Jurisdictions, as a portfolio manager in all the Jurisdictions, as a commodity trading manager in Ontario, and as an adviser in Manitoba.
3. The Funds are managed by the Filers or by an affiliate or successor of the Filers.
4. None of the Filers are in default of any of the requirements of the Legislation.
The Funds
5. Each Fund is an open-end mutual fund trust or an open-end mutual fund that is a class of shares of a mutual fund corporation.
6. Each Fund is a reporting issuer in some or all of the provinces and territories of Canada and subject to National Instrument 81-102 Investment Funds. The securities of the Funds are qualified for distribution pursuant to (a) a simplified prospectus, fund facts and annual information form that have been prepared and filed in accordance with National Instrument 81-101 Mutual Fund Prospectus Disclosure, except as exempted by regulatory relief where applicable; or (b) a prospectus and ETF facts that have been prepared and filed in accordance with National Instrument 41-101 General Prospectus Requirements, except as exempted by regulatory relief where applicable.
7. None of the Funds are in default of any of the requirements of the Legislation.
Current Challenges Faced Due to COVID-19
8. As a result of the coronavirus disease 2019 (COVID-19) outbreak, which was declared a pandemic by the World Health Organization on March 11, 2020 and has led to a "Declaration of Emergency" under the Emergency Management and Civil Protection Act by the Lieutenant Governor of Ontario on March 17, 2020, the Filers face certain challenges in meeting certain obligations under the Legislation.
9. On March 23, 2020, the Principal Regulators issued Ontario Instrument 81-503 Extension of Certain Filing, Delivery and Prospectus Renewal Requirements of Investment Funds in Ontario, and Blanket Order 81-503 Extension of Certain Filing, Delivery and Prospectus Renewal Requirements for Investment Funds in Manitoba, along with similar orders from the other securities regulatory authorities in the other Jurisdictions (together Order 81-503).
10. Order 81-503 recognizes the challenges faced by investment funds due to COVID-19 and provides a 45-day extension for all filings normally required to be filed between March 23, 2020 and June 1, 2020 (the Extension Period).
11. Due to the "Declaration of Emergency" the Filers have moved to a "work from home" environment for the majority of their employees. This change in working environment has had significant impacts on the Filers as their employees are unable to generate the necessary reports in a timely manner and the hiring of temporary employees to help with the number of filings is not possible as it is extremely difficult to train and oversee temporary employees remotely.
12. Each of the Filers has a fiscal year-end of March 31st and therefore cannot rely on Order 81-503 for an extension as the filing deadlines are after the Extension Period. Mackenzie Financial Corporation also has two prospectus renewals that will lapse after the Extension Period.
13. In the absence of the Requested Relief, the Filers will experience undue hardship in complying with the filing deadlines while in a "work from home" environment due to COVID-19.
DECISION
The principal regulator is satisfied that the decision meets the test set out in the Legislation for the principal regulator to make the decision.
The decision of the principal regulator under the Legislation is that the Requested Relief is granted as follows:
1. A Fund required to make a filing and/or delivery in accordance with the Filing and Delivery Requirements during the period from June 2, 2020, to September 1, 2020, has an additional 60 days from the deadline otherwise applicable under the Legislation to make the filing or to send or deliver the document provided that:
(a) the Fund must, as soon as reasonably practicable and in advance of its filing or delivery deadline, notify the Director of the Investment Funds and Structured Products Branch by email at [email protected] stating that the Fund is relying on this decision and each applicable requirement for which it is relying on this decision; and
(b) the Fund must, as soon as reasonably practicable and in advance of its filing or delivery deadline, post a statement on its public website, or the public website of the Filer, stating that the Fund is relying on this decision and each applicable requirement for which it is relying on this decision.
2. A Fund distributing securities under a prospectus with a lapse date that occurs during the period from June 2, 2020, to September 1, 2020, may add an additional 60 days to that lapse date in fulfilling the Prospectus Renewal Requirements provided that:
(a) The Fund must, as soon as reasonably practicable and in advance of its filing or delivery deadline, notify the Director of the Investment Funds and Structured Products Branch by email at [email protected] stating that the investment fund is relying on this decision and each applicable requirement for which it is relying on this decision.
(b) The Fund must, as soon as reasonably practicable and in advance of its filing or delivery deadline, post a statement on its public website, or the public website of the Filer, stating that the Fund is relying on this decision and each applicable requirement for which it is relying on this decision.